Dings v. Guthrie — 12 N.Y. St. Rep. 441

Majority

p. 441

Albert Dings, Resp’t, v. Rosella M. Guthrie et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed July, 1887.)

Headnote

1. Statute op limitations—Payment—When delivery op money takes' EPPECT AS.

One of the makers of a promissory note handed a sum of money to the holder thereof, and requested him to apply it as a payment on the note as of a later date. Held, that the party handing -over the money might attach such terms and conditions to its application as he might deem proper, and that it would take effect according to them.

8. Same—What will not delay operation op statute op limitations.

When two persons make a note, one cannot by making payment without the knowledge or authority of the other, delay the operation of the statute of limitations as against that other; but if the payment is made by the authority or with the knowledge and approval of the other, it will have effect as if made by him.

Appeal from a judgment entered upon the verdict of a jury rendered at a circuit in Washington county.

This action was brought upon a promissory note for $500, made upon the 1st day of April, 1874, and payable one year from that date. ’ Several part payments were made on the note, the last of which was claimed by the plaintiff to have been made on the 1st day of April, 1879.

L. Fraser, for app’lt; Hull & Whitman, for resp’t.

There was a sharp conflict of evidence as to the year when the last payment of fifteen dollars indorsed upon the note was made. The proof on the part of the plaintiff made the payment in 1879; on the part of the defendants, 1878. The jury, by the verdict, found it to have been made the former year. If made as indorsed, April 1, 1879,' the action was in time to escape the statute, having been commenced March 30, 1885. The facts as to that

Dissent

p. 442

payment, as testified to, are as follows: The fifteen dollars were handed to the plaintiff, to be applied on the note, two or three days prior to the 1st of April, by the defendant, Samuel Guthrie, who, in substance and effect, directed it to be indorsed as of the 1st of April, and it was so indorsed. As to this direction there was some conflict in the proof. The judge charges that it was entirely competent for the parties to make an arrangement that the payment should be made as of that day, and that if they so agreed then it would be of the same effect as if made on that day. To such charge there was no exception, and the verdict was for the plaintiff. The effect of the arrangement was that the money should be applied on the note April first, and not before. It would not, therefore, take effect as a payment until that day, and this at the direction of the defendant, who, in handing over the money, might attach such terms .and conditions to its application as he should deem proper, and it would take_ effect according to such terms and conditions. The casé of Shapley v. Abbott ( 42 N. Y., 443 ), is -decided on the question of estoppel, and like McDonnell v. Blanchard (5 Weekly Dig., 410), differs entirely from this on the facts. We are of the opinion that the arrangement or agreement, if .made, would save the case from the effect of the statute. On the question whether it was made the jury have found in the affirmative.

It is urged that there is no evidence that the defendant, Ttosella M. Guthrie, ever made or directed the making of any payment on the note. On this subject the judge charged the jury as follows: “ When two persons make a note, even husband and wife, one cannot, by going and making a payment without the knowledge of the other, Treep the note alive as to the other; but, if he makes the payment in behalf of the other or with the knowledge and approval of the other, then it is the same as if made' by that other.” To such charge there was no exception and, indeed, it was in law, entirely sound. But there was some evidence given tending to show that the payment by the husband was made under the sanction and approval of his wife, as her agent, and, indeed, by fair inference, by her -direction. Winchell v. Hicks, 18 N. Y., 558 ; First Nat. Bank v. Ballou, 49 id., 155; Munro v. Potter, 34 Barb., 358 . No -question was raised on the trial as to Mrs. Guthrie’s liability because of her being a married woman, nor is this question now raised on the defendant’s points submitted to us. It -should be observed, perhaps, that it does not appear that there was any motion ■ for a new trial made on the minutes of the court or otherwise.

The judgment should be affirmed, with costs.

payment Of fifteen dollars four days before the usual interest day, was agreed to be applied and indorsed as upon the interest day. It was not intended as an agreement to extend the statute of limitations or avoid its effect, but to promote convenience of computation. Not to give to this payment the date the parties agreed it should bear, would be to prevent the honest intention of both parties, and to enable the defendant to accomplish a wrong that he did not at the time deem himself capable of. We should hold the date to be as fixed by the parties.

(dissenting).—In regard to the limitation of the right of action, I think a payment cannot, by agreement, be made to take effect at a future day. It is an admission of indebtedness at the time 'it is made, not of an indebtedness at a subsequent time. Suppose a payment made to-day on a verbal agreement that it should be indorsed as of a day two years hence. This ought not to make the statute of limitations run from that future date. Code, § 395; Shapley v. Abbott, 42 N. Y., 443 ; McDonnell v. Blanchard, 5 Week. Dig., 410. The last case seems to be in point; plaintiff’s recovery depends upon the agreement made between the parties, and that was not in writing.

Judgment affirmed, with costs.